STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERTO BLANCO and MERCEDES BLANCO, )

as parents and natural guardians of ) ANGEL JONATHAN BLANCO, a minor, )

)

Petitioners, )

)

vs. ) Case No. 97-5655N

) FLORIDA BIRTH-RELATED NEUROLOGICAL ) INJURY COMPENSATION ASSOCIATION, )

)

Respondent. )

)

FINAL ORDER OF DISMISSAL

This cause came on for consideration of Respondent's Motion for Summary Judgment and/or Motion to Dismiss filed December 9, 1997; the Order to Show Cause rendered December 23, 1997; and the Order rendered January 27, 1998, following a hearing on Respondent's Motion for Summary Judgment and/or Motion to Dismiss.

STATEMENT OF THE CASE

1. On December 3, 1997, Petitioners, Roberto Blanco and Mercedes Blanco, as parents and natural guardians of Angel Jonathan Blanco (Angel), a minor, filed a petition with the Division of Administrative Hearings (DOAH) for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan). The petition affirmatively averred that on

   September 2, 1995, Angel suffered the injury for which benefits are sought and that the physician providing obstetrical services

   at birth was Jorge H. Perez-Perez, M.D. (Dr. Perez-Perez).

   
   

2. DOAH served Respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), with a copy of the petition on December 4, 1997. In response, NICA filed a Motion for Summary Judgment and/or Motion to Dismiss, pursuant to Rule 60Q-2.030(1), Florida Administrative Code, on December 9, 1997. The predicate for Respondent's motion was its assertion that, indisputably, Dr. Perez-Perez was not a "participating physician" as defined by Section 766.302(7), Florida Statutes, since he had not paid the assessment required for participating, and was not exempt from payment at the time the alleged injury occurred. Attached to the motion was an affidavit attesting to the fact that Dr. Perez-Perez was not a "participating physician," as defined by law.

3. By order of December 23, 1997, Petitioners were accorded until January 5, 1998, and subsequently until January 9, 1998, to respond to Respondent's motion and to show good cause, if any they could, why the relief requested should not be granted.

4. Petitioners filed their response to the pending motion on January 9, 1998. That response did not dispute Respondent's assertion that Dr. Perez-Perez was not a "participating physician" at the time the alleged injury occurred, but raised certain arguments which they suggested supported the conclusion that recovery under the Plan did not require the services of a "participating physician." Those arguments were not meritorious;

   however, Petitioners' also averred that:

   In addition, Dr. George E. Perez, as well as Dr. Jorge H. Perez-Perez, provided obstetrical services to Mercedes Blanco during the delivery of Angel Jonathan Blanco. Due to time constraints, the Petitioners have been unable to determine if Dr. Perez was a "participating physician" at the time of the delivery. Upon confirmation of that fact, petitioners request leave to supplement the record with that information.

5. Following the filing of Petitioners' response to the Respondent's motion, a telephone hearing was held to address the matter. The results of that hearing are memorialized in an order of January 27, 1998, as follows:

   This cause came on to be heard on Respondent's Motion for Summary Judgment and/or Motion to Dismiss. At hearing, Petitioners' counsel requested fifteen (15) days to further investigate the matter to determine whether he could identify any physician who was involved in the delivery of the infant, and who was also a "participating physician" under the Plan. If successful, Petitioners would amend their petition to name such physician. If unsuccessful, Petitioners would voluntarily dismiss their petition. Given the circumstances, it is

   
   

   ORDERED that Petitioners are accorded fifteen (15) days from the date of this order to file an amended petition, which names, as the physician who provided obstetric services at the birth of Angel Jonathan Blanco, a "participating physician" under the plan.

   Should Petitioners fail to identify a "participating physician" who participated in the birth of Angel Jonathan Blanco, they should file a voluntary dismissal of their petition within fifteen (15) days of the date of this order, as agreed to at hearing.

   Should Petitioners fail to amend or voluntarily dismiss their petition, Respondent's Motion for Summary Judgment and/or Motion to Dismiss will be addressed.

6. To date, Petitioners have failed to comply with the order of January 27, 1998, in that they have failed to file an amended petition which names a "participating physician" as the physician who provided obstetrical services at Angel's birth or voluntarily dismiss their petition.

7. Under the circumstances, and given that there is no genuine issue of fact regarding the status of Dr. Perez-Perez on September 2, 1995, and that he was not, at the time, a "participating physician" as that term is defined by Section 766.302(7), Florida Statutes, Respondent's motion for final summary order of dismissal should, for reasons appearing more fully in the Conclusions of Law, be granted.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 766.301, et seq., Florida Statutes (1997).

9. The Florida Birth-Related Neurological Injury Compensation Plan (the "Plan") was established by the Legislature "for the purpose of providing compensation, irrespective of fault, for birth-related neurological injury claims" relating to births occurring on or after January 1, 1989. Section 766.303(1), Florida Statutes.

10. The injured "infant, his personal representative, parents, dependents, and next of kin," may seek compensation under the Plan by filing a claim for compensation with the

    Division of Administrative Hearings within five years of the infant's birth. Sections 766.302(3), 766.303(2), 766.305(1), and 766.313, Florida Statutes. The Florida Birth-Related Neurological Injury Compensation Association (NICA), which administers the Plan, has "45 days from the date of service of a complete claim . . . in which to file a response to the petition and to submit relevant written information relating to the issue of whether the injury is a birth-related neurological injury." Section 766.305(3), Florida Statutes.

11. If NICA determines that the injury alleged in a claim is a compensable birth-related neurological injury, it may award compensation to the claimant, provided that the award is approved by the administrative law judge to whom the claim has been assigned. Section 766.305(6), Florida Statutes. If, on the other hand, NICA disputes the claim, as it has in the instant case, the dispute must be resolved by the assigned administrative law judge in accordance with the provisions of Chapter 120, Florida Statutes. Sections 766.304, 766.307, 766.309, and 766.31, Florida Statutes.

12. In discharging this responsibility, the administrative law judge must make the following determination based upon the available evidence:

    1. Whether the injury claimed is a birth- related neurological injury. If the claimant has demonstrated, to the satisfaction of the administrative law judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical

       injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in s. 766.303(2).

       
       

    2. Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital; or by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital.

       Section 766.309(1), Florida Statutes. An award may be sustained only if the administrative law judge concludes that the "infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at birth." Section 766.31(1) and (2), Florida Statutes.

13. Pertinent to this case, "participating physician" is defined by Section 766.302(7), Florida Statutes, to mean:

    . . . a physician licensed in Florida to practice medicine who practices obstetrics or performs obstetrical services either full- time or part-time and who had paid or was exempted from payment at the time of injury the assessment required for participation in the birth-related neurological injury compensation plan for the year in which the injury occurred.

14. Here, it is undisputed that the physician alleged to have provided obstetric services during the birth of the infant, Angel Jonathan Blanco, was not a "participating physician" as that term is defined by Section 766.302(7), Florida Statutes, and as that term is used in Sections 766.301 through 766.316, Florida

    Statutes. Moreover, although accorded the opportunity to investigate, Petitioners have failed to file an amended petition naming a participating physician who was present at the birth of the infant. Under the circumstances, Respondent's motion for a final summary order of dismissal should be granted. Sections 766.309(1) and (2) and 766.31(1), Florida Statutes.

15. Where, as here, "the administrative law judge determines that . . . obstetrical services were not delivered by a participating physician at the birth, he [is required to] enter an order [to such effect] and . . . cause a copy of such order to be sent immediately to the parties by registered or certified mail." Section 766.309(2), Florida Statutes. Such an order constitutes final agency action subject to appellate court review. Section 766.311(1), Florida Statutes.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED, that the petition for compensation filed by Roberto Blanco and Mercedes Blanco, as parents and natural guardians of Angel Jonathan Blanco, a minor, be and the same is hereby dismissed with prejudice.

DONE AND ORDERED this 25th day of February, 1998, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1998.

COPIES FURNISHED:

(By certified mail)

Harold E. Patricoff, Esquire Richard Leslie, Esquire Shutts & Bowen

1500 Miami Center

201 South Biscayne Boulevard Miami, Florida 33131

W. Douglas Moody, Jr., Esquire Graham & Moody, P.A.

101 North Gadsden Street Tallahassee, Florida 32301

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Post Office Box 14567 Tallahassee, Florida 32317-4567

Jorge H. Perez-Perez, M.D. 1822 East Fourth Avenue Hialeah, Florida 33010

Hialeah Hospital Legal Department

625 East 25th Street Hialeah, Florida 33012

Ms. Charlene Willoughby

Agency for Health Care Administration Consumer Services Unit

Post Office Box 14000 Tallahassee, Florida 32308

Daniel Sumner, General Counsel Department of Insurance

The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 120.68(2), Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992). The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 97-005655N

Orders for Case No: 97-005655N